A Florida law that bars children from attending drag shows depicting simulated nudity or certain sexual activities remains unenforceable as a result of a federal appeals court decision handed down earlier this month.
The 11th Circuit Court of Appeals on Oct. 11 upheld a federal district court’s decision to enjoin Senate Bill 1438, which the Legislature passed earlier this year. The measure would have provided for a fine of not more than $1,000 and imprisonment of up to one year for those who admit a child to such a live performance. In addition, restaurants, lodging establishments and venues with beverage licenses could lose their licenses under the law’s provisions, according to the state Legislature’s analysis of the bill.
The case before the federal appeals court involved the owner of an Orlando restaurant called Hamburger Mary’s, which often stages “family friendly” drag shows and comedy sketches where children are welcome.
A defendant in the initial lawsuit challenging the legality of SB 1438, the secretary of the state Department of Business and Professional Regulation, Melanie Griffin, called on the 11th Circuit to stay the preliminary injunction approved by federal Judge Gregory Presnell of the Middle District of Florida.
Presnell concluded the new law was likely overbroad and unconstitutional because phrases in the law – such as “lewd conduct” and “lewd exposure of prosthetic or imitation genitals or breasts” – were not defined in the law.
The appeals court said it was not conclusively ruling on the merits of Griffin’s appeal, but it indicated the key issue in the motion was whether Griffin made a strong case that the district court abused its discretion by imposing a broad preliminary injunction barring her from enforcing the law against anyone. Griffin argued for a partial stay that would have prevented the state from enforcing the law against Hamburger Mary’s but allowing enforcement against other venues.
“... Secretary Griffin has not made a substantial showing that the district court erred in crafting the preliminary injunction to prohibit her from enforcing (Florida law section) 827.11,” the appeals court decision states.
One of the plaintiffs’ attorneys, Gary Israel, welcomed the 11th Circuit decision.
“The best I can tell you is we consider this a major victory and an indication of what is to come since the 11th Circuit had to rely upon whether there was a likelihood of success at the final appeal and declined to overturn the stay,” Israel said in an email to the Florida Record.
The 11th Circuit’s three-judge panel that handed down the ruling was not unanimous. Judge Andrew Brasher dissented, arguing that he would have granted the motion for a partial stay of the injunction pending appeal.
“The district court issued a universal injunction prohibiting the enforcement of a state criminal law against anyone and everyone, even though the plaintiff’s … asserted injury would be remedied by an injunction protecting only (Hamburger Mary’s) from prosecution,” Brasher said in his dissent. “Although we have granted partial stays in comparable cases when a district court has gone too far in enjoining the enforcement of a state law … the majority fails to stay the overbroad injunction in this case.”
The majority, however, said there was a division of viewpoints about whether a partial stay was the better option, and the other two justices could not say the district court’s ruling represented an abuse of discretion.